While adverse possession doctrine shares several basic characteristics regardless of the state in which it is applied, the same cannot be said for claims of prescriptive easements. This is due in part to long-standing questions regarding the ultimate source of prescription as applied in the various U.S. courts.
Requirements for prescriptive easements in this country usually conform to one of three general standards, depending on the court in which the case is heard. In one extreme example from Kentucky, a single court ruling describes — and apparently recognizes — all three variants, each with its own set of requirements, to create a way by prescription. Cole v. Gilvin1 presents the following possibilities:
- As a general matter, in order to obtain a right to a prescriptive easement, a claimant’s adverse use must be “actual, open, notorious, forcible, exclusive, and hostile, and must continue in full force … for at least fifteen years.”
- A prescriptive easement … is based on a presumed grant that arises from the adverse, uninterrupted, and continued use for a 15-year statutory period. Continuous, uninterrupted use of a passway without interference for 15 years or more raises a presumption the use was under a claim of right…
- A private passway may be acquired by prescriptive use although a right of way is not strictly a subject of continuous, exclusive, and adverse possession. It is sufficient if the use exercised by the owner of the dominant tenement is unobstructed, open, peaceable, continuous, and as of right for the prescribed statutory period… [Note: Numbering and some reformatting made by author.]
The first listed item in this series is by far the most stringent and leans heavily on common law requirements for adverse possession. By contrast, the second set of requirements is less restrictive; the third, even more lenient. To further muddy the issue, all of these statements appear to be legitimate based on previous Kentucky precedent.
This apparent confusion becomes much more understandable when prescriptive easements are considered within the framework of early English law. From this starting point, the state and federal courts have blended and built upon various aspects of English law to arrive at our present level of chaos.
English authorities established a 20-year bar for adverse claims of fee title in 1623. Claims of adverse possession based on 21 Jac. I., c. 16 did not depend on a presumption of a grant; the courts considered that the right of ownership was actually created by use of the land.
However, the English courts continued to apply older common law standards to claims of incorporeal (non-possessory) rights. The earliest statute of limitations for claims of fee simple title in England required “immemorial usage” that would extend back to the reign of Richard I. (circa 1189 A.D.) This standard was also eventually applied to claims of incorporeal rights. As time passed, this standard became impossible to prove from a practical perspective, as the claimant would have to demonstrate that use of land had continued without interruption for several centuries.
To balance the extreme length of time required to prove an easement, the English legal authorities developed the concept of a presumed grant. This theory would assume immemorial use of a way based on repeated use with the apparent knowledge of the record owner. Continuous and apparent use for a significant period of time would constitute a reasonable basis from which to conclude that the user had some undocumented right to use the land of another. It is unsurprising that this simple statement of requirements resembles the third (most lenient) list of requirements from the Kentucky ruling quoted at the beginning of this article.
At first, the English court considered this theory to be a rebuttable presumption. The time required — 20 or 40 years, depending on the court — would constitute prima facie evidence of use for the centuries in which no evidence was available. This presumption could be defeated by actual evidence of non-use prior to the 20-year period. As it continued to evolve, the doctrine of the presumed grant (or lost grant theory) became a conclusive presumption of right after 20 years had elapsed. This set of principles was applied only to incorporeal rights and was eventually formalized in statute by 2 & 3 William IV., c. 71 (1st August 1832).2
The U.S. Supreme Court has long recognized the vagaries of prescription that existed in English common law. In Rhode Island v. Massachusetts, the court concluded that either prescription or the doctrine of presumed grant could be applied to a claim of an easement, depending on circumstances.
In their brief on behalf of Rhode Island, counsel considered the mechanisms of prescription as provided by English precedent: “In England there is but little difference between the doctrine of prescription, and the doctrine of presuming lost grants, in regard to the objects embraced by the two principles. The doctrine of prescription never extended to lands in fee, or corporeal hereditaments, nor did it extend to such incorporeal rights as could exist only by matter of record; …
“On the other hand, the doctrine of presuming grants never extended to corporeal hereditaments; but, unlike the doctrine of prescription, it embraced all incorporeal hereditaments, whether evidenced by matters of record, or purely by grant. Patents from the crown, and acts of parliament even, were presumed to exist.” 3
Other arguments presented in this opinion recognize that the doctrine of the presumed grant became the subject of dispute among English legal authorities circa 1820. The British government enacted remedies (2d and 3d Wm. 4 (1832)) to limit the application of the presumed grant. This was considered necessary by the English authorities in part due to the strain that it put on the consciences of jury members who were required to presume a grant where no evidence existed to support the claim. The U.S. Supreme Court also affirms that English courts applied the doctrine of presumed grants solely to establish incorporeal rights between dominant and servient estates.
Introducing new levels of complexity in the realm of unwritten rights, Rhode Island v. Massachusetts notes that, at this point in time, the U.S. courts could apply the doctrine of the presumed grant both to corporeal and incorporeal estates.
The New Jersey courts provide another perspective on the development of the lost grant theory. Lehigh Valley R.R. v. McFarlan4 affirms that the earlier permutations of the English statute of limitations were applied only in cases of real property and did not apply to easement claims. Even after 21 Jac. I., c. 16 set the English statute of limitations for claims of real property at 20 years, English courts continued to wrestle with the problem of public ways that lacked any formal documentation justifying their existence.
Lehigh Valley R.R. v. McFarlan concludes that prescription as applied to claims of easement came into existence by judicial construction and culminated in the “fiction” of the lost grant. As described in this ruling, this appears to be the ultimate legal example of “the dog ate my homework.”
At the time that the 13 colonies were forming their own federal government, there was some question whether the lost grant theory acted to confer a legal right or merely created a rebuttable presumption of title that would stand until it was disproved by contrary evidence. This uncertainty is still reflected today in the various interpretations of the significance of the lost grant theory by the state courts. It was not until 1832 that the English courts took the additional step of concluding that 40 years of uninterrupted use created a conclusive presumption of right that could not be overthrown by contrary evidence.
It is important to consider the state of the development of English common law during the period in which the American colonies were breaking away from the English crown. For those states that recognized segments of existing English common law that did not conflict with American legal principles, this would have been their ultimate basis for the relevant legal concepts.
The court observes: “The judicial expression of opinion in England nearest to the time of the separation of the colonies from the mother country is that of Lord Mansfield, in Cowper 215, where he says that effect is given to the presumption, ‘not that in such cases the court really thinks a grant has been made, because it is not probable a grant should have existed without its being upon record, but they presume the fact for the purpose and from the principle of quieting the possession.’ The question has been set at rest in England by the statute 2 and 3 William IV. But no one can examine the English cases for half a century preceding the statute, without observing that the statute in its main features was simply declarative of the law as expressed by the great weight of judicial opinions.” 4
The New Jersey courts were clearly less than enthusiastic in their consideration of the lost grant theory 60 years later. Plaza v. Flak5 considers the origins of prescriptive rights and the relevance of the lost grant theory, concluding that it: “is more or less in disrepute today.”
Fletcher v. Fuller6 firmly establishes the presumed grant as a legitimate concept for the American legal system.
While this decision was a situation in which ownership of an entire tract was under consideration, research on the origins of the doctrine includes the following statement: “Where one uses an easement whenever he sees fit, without asking leave and without objection,” says the Supreme Court of Pennsylvania, “it is adverse and an interrupted adverse enjoyment for twenty-one years is a title which cannot afterward be disputed. Such enjoyment, without evidence to explain how it began, is presumed to have been in pursuance of a full and unqualified grant.” (Garrett v. Jackson, 20 Penn. St. 331, 335.) The same presumption will arise whether the grant relate to corporeal or incorporeal hereditaments. As said by this court in Ricard v. Williams, 7 Wheat. 59, 119, speaking by Mr. Justice Story: “A grant of land may as well be presumed as a grant of a fishery, or of common, or of a way.”
At least one state court has recently applied principles from Fletcher v. Fuller to provide an alternative avenue to the existing statutory framework for adverse possession claims. El Paso Production v. PWG7 considers the doctrine of presumed grant as an alternative to claims of adverse possession. While the New Mexico statute of limitations only mandates a 10-year period of occupation, it also requires color of title and payment of taxes as prerequisites for an adverse claim.
In 1993, the New Mexico Supreme Court affirmed the lost grant theory for claims of fee simple title in El Paso Production v. PWG. This theory was not considered to be at odds with or supersede existing statutory requirements. In this case, the claimant in question possessed the land for more than 50 years and evidence was presented to the effect that the previous owner was a brilliant businessman but a terrible record-keeper: “In New Mexico, adverse possession requires color of title supported by a writing or conveyance of some kind and payment of taxes during the period of possession, see NMSA 1978, § 37-1-22 … neither of which are required to find presumption of a grant.
“Therefore, a presumption of grant may be found from evidence supporting the inference (a logical presumption) of a lost or neglected grant followed by long-term, open, active, exclusive possession of property under claim of right and acquiescence or no resistance by interested parties to that possession or claim of right. Here, based on the written and signed agreements to transfer the leases, the complete performance of one of the parties, and the statement by Mike Abraham that the interests had been conveyed, the trial court found that the grant should have been made if it in fact had not been made. We affirm the trial court’s decision on ownership.”7 Notice that this court has applied the earlier rebuttable presumption rather than the later conclusive version of the lost grant theory.
While ancient history does not hold the answers to all legal questions, in this case it provides the necessary context from which to gain a greater understanding of the constellation of issues that orbit prescriptive claims.
- Cole v. Gilvin: 59 S.W.3d 468 (2001)
- Real Property Statutes Passed in the Reign of William IV and Victoria: Author: Leonard Shelford, Esq. 1842
- Rhode Island v. Massachusetts: 45 U.S. 591; 11 L. Ed. 1116 (1846)
- Lehigh Valley R.R. v. McFarlan: 43 N.J.L. 605 (1881)
- Plaza v. Flak: 7 N.J. 215 (1951)
- Fletcher v. Fuller: 120 U.S. 534; 7 S. Ct. 667; 30 L. Ed. 759 (1887)
- El Paso Production v. PWG: 116 N.M. 583; 1993-NMSC-075; 866 P.2d 311 (1993)
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law can change over time and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source is an attorney admitted to the bar in your jurisdiction.